CINDY A. COHN, ESQ. (State Bar No. 145997)
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, CA 94402
Telephone: (415) 341-2585
M. EDWARD ROSS, ESQ. (State Bar No. 173048)
STEEFEL, LEVITT & WEISS
A Professional Corporation
One Embarcadero Center, 30th Floor
San Francisco, California 94111
Telephone: (415) 788-0900
LEE TIEN, ESQ. (State Bar No. 148216)
1452 Curtis Street
Berkeley, California 94702
Telephone: (510) 525-0817
Attorneys for Plaintiff
DANIEL J. BERNSTEIN
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DANIEL J. BERNSTEIN, an individual, ) NO. C 95-0582 MHP
)
Plaintiff, )
) PLAINTIFF'S OBJECTION TO EVIDENCE
v. )
) DATE: October 20, 1995
UNITED STATE DEPARTMENT OF ) TIME: 10:30 a.m.
STATE, et al., ) DEPT.: Courtroom 11
)
Defendant )
)
________________________________________)
Plaintiff Daniel J. Bernstein hereby objects to the Declaration Of
William J. Lowell Department Of State Office Of Defense Trade
Controls and the Declaration Of Louis F. Giles National Security
Agency (collectively, the "Declarations") submitted by the Defendants
in support of Defendants' Motion to Dismiss ("Motion To Dismiss"). The
basis for this objection is that the appropriate standards for
determining the Motion To Dismiss are those under Federal Rule of
Civil Procedure 12(b)(6) which do not permit extrinsic evidence.
I. Facts
Plaintiff's complaint asserts that his First and Fifth
Amendment rights have been violated. In their Motion To Dismiss, the
Defendants argue the merits of the case prior to discovery by
asserting that jurisdiction is lacking because Plaintiff's claims are
not "colorable. " In support thereof, the Defendants rely upon case
authority and upon the Declarations.
II. Issue
May the Defendants, in an attack on subject matter
jurisdiction, use the Declarations to establish as "frivolous" issues
going to the merits of the case?
III. Analysis
A constitutional claim is not colorable if it "clearly appears
to be immaterial and made solely for the purpose of obtaining
jurisdiction or ... is wholly insubstantial or frivolous." Hoye v.
Sullivan, 985 F.2d 990, 991 (9th Cir. 1992) (citing Boettcher v.
Secretary of HSS, 759 F.2d 719, 722 (9th Cir. 1985) (quoting Bell v.
Hood, 327 U.S. 678, 682-83 (1946))). The Motion To Dismiss does not
contend that Plaintiff's constitutional claims are clearly immaterial
and made for the purpose of obtaining jurisdiction. Rather, the
Defendants contention must be characterized as an assertion that
Plaintiff's constitutional claims are insubstantial or frivolous on
their merits. The Ninth Circuit Court of Appeals has established the
appropriate standards to resolve jurisdictional issues that intertwine
with the merits of a case.
In Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987), an
inmate sued employees of the Parole Commission alleging violations
under the due process clause of the Fifth Amendment. Under applicable
statutory authority, the court determined that it had jurisdiction to
hear the case if and where the Parole Commission had acted outside of
its statutory authority. In this regard, the court determined that
the jurisdiction analysis was intertwined with the merits of the case.
The court stated:
The relatively expansive standards of a 12(b)(1) motion are not
appropriate for determining jurisdiction in a case like this,
where issues of jurisdiction and substance are intertwined. A
court may not resolve genuinely disputed facts where 'the
question of jurisdiction is dependent on the resolution of
factual issues going to the merits. In such a case, the district
court assumes the truth of the allegations in a complaint, unless
controverted by undisputed facts in the record .... Dismissal is
then appropriate where 'it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief ... This standard, 'often cited in
Rule 12(b)(6) motions,... is equally applicable in motions
challenging subject matter jurisdiction when such jurisdiction
may be contingent upon factual matters in dispute .... If a
district court cannot determine jurisdiction on the basis of a
threshold inquiry analogous to a 12(b)(6) motion, the court may
assume jurisdiction and go on to determine the relevant
jurisdictional facts 'on either a motion going to the merits or
at trial.'
Id, at 1177 (emphasis added) (citations omitted).
The holding in Roberts applies in this case. As in Roberts,
this is a case where the issues of jurisdiction and substance are
intertwined. The colorability of Plaintiff's constitutional claims is
a minimum threshold determination of the merits of the case; and the
colorability determination is, at least as argued by the Defendants,
dispositive of the jurisdictional issue. Therefore, under Roberts,
the colorability analysis in this case should be determined under Rule
12(b)(6) standards, and not as a Rule 12(b)(1) "speaking" motion.
With the exception of judicially noticed facts, Rule 12(b)(6)
standards do not allow reference to any material outside of the
complaint. Hal Roach Studios v. Richard Feiner and Co., 896 F. 2d
1542, 1555 n. 19 (9th Cir. 1990); MGIC Indem. Corp. v. Weisman,
803 F.2d 500, 504 (9th Cir. 1986) (proper to consider judicially
noticed facts). The contents of the Declarations as well as the
documents attached thereto are not subject to judicial notice under
either Federal Rule of Evidence 201(b)(1) or (b)(2). Accordingly, the
Declarations and their exhibits may not be considered in assessing the
colorability of Plaintiff's complaint. Any reference thereto in the
Motion To Dismiss should be stricken, and any assertion or proposition
reliant upon such evidence must be discounted accordingly.
A. The "Is It Speech?" Argument
In an effort to portray all of Plaintiff's First Amendment
claim as frivolous, the Defendants attempt to establish that
Plaintiff's CJ requests were only for "software"; that software is
functional rather than communicative; that the First Amendment only
applies to communicative speech, and that Plaintiff's claims to First
Amendment rights are therefore frivolous. Def's Memorandum, 10: et
seq. In support of that argument, the Defendants assert:
The National Security Agency ... confirmed that snuffle is in
fact cryptographic software.... See Declaration of Louis Giles
... para. 16, 17. Cryptographic software ... is considered to
be a functioning cryptographic product.... Id. para 17.
Id. at 1 1: 4-1 1. This reference should be stricken and the argument
for which it stands discounted.
B. The O'Brien Test.
The Defendants assert that the second prong of the O'Brian
test is beyond dispute and that any claim to the contrary must be
frivolous, i.e., that the government indisputably has a substantial
interest in "control[ing] the availability of cryptography from the
United States." That proposition is supported wholly by the Giles
Declaration and without recourse to judicially noticeable facts.
Def's Memorandum, 13:23-28 & 14:1-9. The reliance on the Giles
Declaration must be stricken. When it is stricken, there is no
evidence remaining to support the government's proposition, and it
must be discounted accordingly.
The Defendants assert that the third prong of the O'Brien test
is beyond dispute and that any claim to the contrary must be
frivolous, i.e., that the government's interest in "control[ing] the
availability of cryptography from the United States" is "unrelated" to
the suppression of expression. Def's Memorandum, 14:17 et seq. That
proposition is supported by the subsidiary proposition that category
XIII(b)(1) of the USML "focus[es] ... on the function of the commodity
... [and not to] a description of scientific ideas or information
related to cryptography.... Rather, it is because of its function ...
that [] software is covered by the USML." Def's Memorandum,
14:20-15:5. This latter proposition is taken directly from the Giles
Declaration. Id. The references to the Giles Declaration must be
stricken and the propositions for which they stand must be discounted
accordingly.
The Defendants assert that the fourth prong of the O'Brien
test is beyond dispute and that any claim to the contrary must be
frivolous, i.e., that the government's interest in "control[ing] the
availability of cryptography from the United States" is only an
incidental restriction on speech and that it is no greater than
essential to the furtherance of that interest. Def's Memorandum, 15:7
et seq. In support of that proposition, the Defendants assert that the
ITAR excludes cryptographic software that does not pose a risk to
national security. And, in support of that proposition, the
Defendants rely on the Declarations:
Category XIII(b) excludes certain cryptographic software that
does not maintain data confidentiality or secrecy ... as well as
mass market software products with limited encryption
capabilities. See Giles Decl. para. 7-9; Lowell Decl. para. 18
and Tab 20.
Id at 16:5-10. These statements from the Declarations must be
stricken, and the propositions for which they stand discounted
accordingly.
C. The Prior Restraint Argument.
The Defendants argue that, "as explained above," software is
not speech; therefore the First Amendment is not implicated in this
case; therefore there can be no colorable claim to an invalid prior
restraint; therefore Plaintiff's claim to the contrary is wholly
insubstantial. Def's Memorandum, 18:12-17. However, as explained in
section IIIA, supra, the Defendants' rely solely on the Declarations
for the premise that the submitted material is not speech. Without
recourse to the Declarations, the premise cannot be considered beyond
dispute. Accordingly, without a valid premise, the Defendants'
conclusion must fall.
The Defendants' alternative argument is that the prior
restraint claim is frivolous because:
In its June 29, 1995 letter, the State Department advised
plaintiff that its CJ determinations pertained solely to the []
software. Lowell Decl. para. 19 and Tab 21. Likewise, the
National Security Agency used the explanatory information
submitted by Mr. Bernstein to evaluate the snuffle software, but
did not assess that information separately for export control
purposes. Giles Decl. para. 14. Thus, the CJ determination did
not constitute a restriction on these explanatory items, and
there is no basis for plaintiff's prior restraint claim.
Id. The June 29, 1995 letter was apparently drafted after Plaintiff
had filed his complaint and sent to Plaintiff in anticipatory support
of defeating the claim of an unlawful prior restraint; the credibility
of the statements therein is entirely circumspect. Notwithstanding
its dubious genesis, the June 29, 1995 letter is extrinsic evidence
going to the merits of the case that cannot be considered at this
stage of the proceedings, and the propositions for which it stands
must fall.
Finally, the Defendants baldly assert that the June 29, 1995
letter determined that certain information supplied in the CJ request
"constitutes technical data," the prior restraint of which is
constitutional. Def's Memorandum, 19:18-20:7. The only evidence that
the information in question is technical data is the June 29, 1995
letter. The evidence goes to the merits of the case and should not be
considered by the Court at this stage.
D. The Vagueness and Overbreadth Argument
The Defendants assert that the regulations in question are not
overbroad because, as applied, they exclude certain types of software.
Def's Memorandum, 24:4-10. In support of that proposition, the
Defendants rely on statements of policy in the Declarations. Id. The
issue of the implementation of the regulations go directly to the
merits of the case. Extrinsic evidence on this issue should not be
allowed at this stage where the Court is merely determining its
jurisdiction to hear the case.
IV. Conclusion
Because the colorability analysis is intertwined with the
merits of this case, Roberts v. Corrothers requires that Rule 12(b)(6)
standards apply. Under those standards, the Court cannot consider the
Declarations in support of Defendants' Motion To Dismiss. All
reference thereto should be stricken and all propositions for which
they stand discounted accordingly.
Date: September 19, 1995 STEEFEL, LEVITT & WEISS
A Professional Corporation
(signed: M.E. Ross)
By ___________________________
M. Edward Ross
Attorneys for Plaintiff
DANIEL J. BERNSTEIN
[8880.PLEA]F37230
PLAINTIFF'S OBJECTION TO EVIDENCE; No. C-95-0582 MHP Page 6